//
you're reading...
legal issues

This general understanding of Section 53-A of the Act is not absolute. In a given case, the suit for perpetual injunction can be filed based upon the agreement of sale, even where no relief of specific performance of agreement of sale is claimed. In Yenugu Achayya v. Ernaki Venkata Subba Rao1, a Division Bench comprising of Chief Justice Subba Rao and Justice Viswanatha Sastri, the two giants, in the field of law, had aptly and succinctly expressed the purport of Section 53-A as under: “The section does not either expressly or by necessary implication indicate that the rights conferred on the transferee thereunder can only be invoked as a defendant and not as a plaintiff. Under the terms of the section the transferor is debarred from enforcing against the transferee only rights in respect of the property and this bar does not depend upon the array of the parties. The transferee can resist any attempt on the part of the transferor to enforce his rights in respect of the property whatever position he may occupy in the field of litigation. In one sense, it is a statutory recognition of the defensive equity. It enables the transferee to use it as a shield against any attempt on the part of the transferor to enforce his rights against the property. Whether the transferee occupies the position of a plaintiff or a defendant, he can resist the transferor’s claim against the property. Conversely, whether the transferor is the plaintiff or the defendant, he cannot enforce his rights in respect of the property against the transferee. The utility of the section or the rights conferred thereunder should not be made to depend on the maneuvering for positions in a Court of law, otherwise a powerful transferor can always defeat the salutary provisions of the section by dispossessing the transferee by force and compelling him to go to a Court as plaintiff. Doubtless, the right conveyed under the section can be relied upon only as a shield and not as a sword but the protection is available to the transferee both as a plaintiff and as a defendant so long as he uses it as a shield.”

THE HONOURABLE SRI JUSTICE L.NARASIMHA REDDY
The Ongole Bull

Image via Wikipedia

C.R.P.Nos.820 of 2011 and bt 

23-06-2011 

Madala Kotaiah 

Ms Hamsa Minerals & Exports and  another.  

Counsel for the petitioner:  Sri T.Sreedhar

Counsel for the Respondents: Sri Y.V.Ravi Prasad

:COMMON ORDER:      

        These two revisions arise out of an order, dated 24.03.2008 passed by the
Court of I Additional Junior Civil Judge, Ongole, in I.A.No.338 of 2007 in
O.S.No.427 of 2007. 

        The petitioner filed the suit, against the respondents, for perpetual
injunction, in respect of the suit schedule property of an extent of Acs.2.10
cents in survey No.74 and Ac.0.90 cents in survey No.71 of R.L.Puram Village,
Chimakurthy Mandal, Prakasam District.  It was pleaded that the original owner
of the land was one Sri Pamidi Ramaswamy and that in a partition/settlement, it
has fallen to the share of one of his daughters, by name A.Sayamma, the mother
of the 2nd respondent.  The petitioner is the son-in-law of another daughter, by
name, Nagamma.  He is said to have acquired the suit schedule property from
Sayamma through an agreement of sale, dated 12.06.1982, at the rate of
Rs.6,300/-, per acre.  He stated that the entire consideration was  paid and
that the possession of the land was delivered to him.  He pleaded that the
pattadar passbooks were also issued by the competent Revenue Authority.  The
petitioner alleged that the 1st respondent, which is an Industry, owns land in
the neighbourhood of the suit schedule property, and insisted on sale of the
said property.  On refusal by the petitioner to sell the property, the 1st
respondent is said to have colluded with the 2nd respondent and brought into
existence, the sale deed, dated 27.08.2005 and started interfering with the
property on the basis of the same.

        The petitioner filed I.A.No.338 of 2007 under Order XXXIX Rules
1 and 2 C.P.C., for temporary injunction.  He asserted that he is in possession
and enjoyment of the property for the past several decades and that there is no
basis, or justification, on the part of the respondents to interfere with his
possession.  The respondents filed separate counters, opposing the application.
Through its order, dated 24.03.2008, the trial Court allowed the I.A., and
granted temporary injunction in favour of the petitioner.

        Respondents 1 and 2 filed C.M.A.Nos.14 and 15 respectively, against the
order in I.A.No.338 of 2007, before the Court of V Additional District Judge,
Ongole.  Through separate, but identical, orders, dated 24.02.2011, the
Appellate Court allowed the appeals.  Hence, these two revisions, under Article
227 of the Constitution of India.

        Sri T.Sreedhar, learned counsel for the petitioner, submits that the
Appellate Court travelled beyond the scope of the I.A. and allowed the appeals
and made certain observations, which would have bearing upon the merits and
maintainability of the suit.   He contends that though the petitioner has yet to
acquire perfect title over the property, he can protect his possession, on the
strength of the agreement of sale by relying upon Section 53-A of the Transfer
of Property Act, (for short 'the Act').  He submits that apart from being a
source of effective defence for a defendant in a suit, Section 53-A of the Act
can constitute the basis for filing an independent suit for title without
claiming the relief of specific performance of the agreement.  Learned counsel
further submits that the material on record disclosed that the petitioner is in
possession of the entire extent of Acs.3.00 of land, so much so pattadar pass
books and title deeds were issued and there is absolutely no basis to the
Appellate Court in reversing the findings of the trial Court.

        Sri Y.V.Ravi Prasad, learned counsel for the respondents, on the other
hand, submits that the relief of perpetual injunction cannot be claimed by a
person against the true and actual owners of the property, and the suit was not
maintainable in law.  He contends that the so-called agreement of sale is bereft
of any particulars; to such an extent that even, the survey number of the land
was not mentioned and that the suit was not maintainable either on facts or in
law.  He submits that an extent of Ac.0.90 cents in survey No.71 was purchased
by the 1st respondent from the 2nd respondent, through a sale deed dated
27.08.2005 and the petitioner has no right or interest vis--vis the said land.

Though the suit was filed for the relief of perpetual injunction in respect of
Acs.3.00, the actual dispute or controversy is about Ac.0.90 cents of land in
survey No.71.  The petitioner based his claim in property on Ex.A.5-agreement of
sale.  He was issued pattadar passbooks and title deeds and his name was entered
in 1(B) extract and No.3 Adangal, marked Exs.A.1 to A.4.  The respondents, on
the other hand, pleaded that the suit schedule property remained with Sayamma
till her death and her daughter, the 2nd respondent, succeeded to the same.
She, in turn, is said to have executed the sale deed marked as Ex.R.1, dated
27.08.2005,          in favour of the 1st respondent, in respect of Ac.0.90
cents of land.
        In a suit for injunction, what becomes relevant is the factum of
possession over the suit schedule property as on the date of filing of the suit.
Except as a semblance of legal right to remain in possession, the law does not
insist on existence of title in favour of the plaintiff in a suit of that
nature. Reference to title will be only to ensure that the possession claimed by
the plaintiff is not of an outright trespasser or encroacher, but is by a person
having a semblance of right.  Anyone who wants pronouncement upon the title in
his favour, must file a suit for declaration of title.

        Section 53-A of the Act is intended to protect the rights of the persons,
who have entered into an agreement for purchase of an item of immovable property
and are in possession of the property, but are facing threat of dispossession
from the concerned vendors. The relief under this provision can be claimed, only
by expressing readiness and willingness to perform his part of contract. In such
cases, they can effectively resist the attempts of the vendors and the Court can
grant the necessary relief.  Instances of suits being filed solely on the basis
of agreement of sale are somewhat rare.  The holders of agreement of sale, in
such cases, are required to file suit for specific performance of agreement of
sale. Perpetual injunction can also be claimed as an ancillary relief.          

        This general understanding of Section 53-A of the Act is not absolute.  In
a given case, the suit for perpetual injunction can be filed based upon the
agreement of sale, even where no relief of specific performance of agreement of
sale is claimed.  In Yenugu Achayya v. Ernaki Venkata Subba Rao1, a Division
Bench comprising of Chief Justice Subba Rao and Justice Viswanatha Sastri, the
two giants, in the field of law, had aptly and succinctly expressed the purport
of Section
53-A as under:

        "The section does not either expressly or by necessary implication
indicate that the rights conferred on the transferee thereunder can only be
invoked as a defendant and not as a plaintiff.  Under the terms of the section
the transferor is debarred from enforcing against the transferee only rights in
respect of the property and this bar does not depend upon the array of the
parties.  The transferee can resist any attempt on the part of the transferor to
enforce his rights in respect of the property whatever position he may occupy in
the field of litigation.  In one sense, it is a statutory recognition of the
defensive equity.  It enables the transferee to use it as a shield against any
attempt on the part of the transferor to enforce his rights against the
property.
        Whether the transferee occupies the position of a plaintiff or a
defendant, he can resist the transferor's claim against the property.
Conversely, whether the transferor is the plaintiff or the defendant, he cannot
enforce his rights in respect of the property against the transferee.  The
utility of the section or the rights conferred thereunder should not be made to
depend on the maneuvering for positions in a Court of law, otherwise a powerful
transferor can always defeat the salutary provisions of the section by
dispossessing the transferee by force and compelling him to go to a Court as
plaintiff.  Doubtless, the right conveyed under the section can be relied upon
only as a shield and not as a sword but the protection is available to the
transferee both as a plaintiff and as a defendant so long as he uses it as a
shield."

        A note of caution, however, was added to the effect that the transferee
under an agreement of sale cannot rely upon Section
53-A of the Act to recover possession.  Reliance was placed upon the judgment of
the Madras High Court in Veera Raghava Rao v. Gopala Rao2.   In Jahangir Begum
v. Gulam Ali Ahmed3, the erstwhile High Court of Hyderabad held that Section 53-
A of the Act cannot be invoked by a person, who is not in possession of the
property, as on the date of filing of the suit.

        These are the questions, which, in fact, are required to be considered at
the hearing of the suit.  In the I.A. filed by the petitioner, the trial Court
recorded a finding that the petitioner is in possession of the property, and
accordingly, granted temporary injunction.  The Appellate Judge, however,
proceeded to express views upon the very maintainability of the suit.  By
referring to certain decided cases, the learned Appellate Judge observed that
the suit was not maintainable, unless the relief of specific performance was
claimed.  Another observation made by him was that even in a suit for perpetual
injunction, "title" has to be pleaded and proved and can be gone into.  As
observed earlier, the reference to title, if at all, would be only to know
whether the person claiming the relief of perpetual injunction holds any
semblance of right over the property, or is just a person, who has forcibly and
without any legal basis, assumed the possession of the property.  There was no
basis for the Appellate Court in taking the view on the maintainability of the
suit or the relevance of title.

        The 2nd respondent did not dispute the existence of agreement of sale in
favourof the petitioner.  Her resistance was mainly on the ground that Ex.A.5
was bereft of any particulars and the petitioner cannot derive any right vis--
vis the suit schedule property.  Apart from Ex.A.5, the petitioner filed
pattadar pass books and extracts of other revenue records. The question as to
whether Ex.A.5 was in respect of suit schedule property and whether it was
genuine or not, needs to be examined at the hearing of the suit after trial.
The petitioner has, prima facie, proved his right in relation to the property
and the balance of convenience is in his favour.  Further, while the petitioner
intends to put the land to agricultural use, the 1st respondent proposed to use
it as a dumping yard.  The balance of convenience is in favour of the
petitioner, to enable him to cultivate the land.        Hence, the revisions are allowed and the order of temporary injunction
shall remain in force till the disposal of the suit.  The petitioner shall
however not utilize the land except for agricultural uses.  The trial Court
shall endeavour to dispose of the I.A., filed by the petitioner under Section 45
of the Evidence Act as early as possible and the disposal of the suit shall also
be expedited.        There shall be no order as to costs.?1 AIR 1957 AP 854
2 AIR 1942 MADRAS 125
3 AIR 1955 HYDERABAD 101     

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,884,003 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: